Central Administrative Tribunal - Delhi
N K Sharma vs M/O Home Affairs on 15 December, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1976/2014
Reserved on: 04.12.2015
Pronounced on:15.12.2015
Hon'ble Mr. Justice Syed Rafat Alam, Chairman
Hon'ble Dr. B.K. Sinha, Member (A)
Shri N.K. Sharma s/o Shri Hem Prakash,
R/o H-2, Type-V, DAF, Model Town,
Delhi - 110 009. ...Applicant
(By Advocate: Sh. Rajeev Sharma)
Versus
1. Union of India
Ministry of Home Affairs,
Through its Secretary,
North Block, New Delhi.
2. Union of India
Ministry of Personnel, P.G. & Pension,
Department of Personnel & Training,
Through its Secretary,
North Block, New Delhi.
3. Central Vigilance Commission
Through its Central Vigilance Commissioner,
Satarkta Bhavan, GPO Complex,
Block-A, INA, New Delhi.
4. Govt. of NCT of Delhi
Through its Chief Secretary,
Delhi Sachivalya, IP Estate, Delhi.
5. The Commissioner,
East Delhi Municipal Corporation,
Udyog Sadan,
Patparganj Industrial Area,
Delhi. ...Respondents
(By Advocate: Sh. Rajeev Kumar)
ORDER
By Dr. B.K. Sinha, Member (A):
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 2 impugning the Charge-sheet dated 22.01.2013 served upon him under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969, and prayed for quashing of the same.
2. The facts of the case, in brief, are that the applicant, who is a DANICS officer, was appointed as Deputy Commissioner in the respondent organization and posted in Shahdara (South) Zone from 08.12.2004 to 31.08.2005 and in Central Zone from September, 2005 to November, 2005. It is the case of the applicant that before his appointment in the respondent organization, one PIL bearing no. WP(PIL) No.877/2001 had already been filed before the Hon'ble High Court of Delhi by one Harjeet Dua against the MCD alleging unauthorized and illegal constructions activities being carried out in various colonies of East Delhi. The Hon'ble High Court, vide its order dated 31.05.2005 had directed the respondents for demolition and removal of unauthorized buildings. The respondents were further directed to file a status report in respect of such demolition being brought about which was filed on 14.03.2005. The Hon'ble High Court accepted the said status report vide order dated 16.03.2005, which reads as under:-
"The report is filed by the respondent Corporation with the affidavit dated 14.03.2005 sworn by one Mr. N.K. Sharma, Deputy Commissioner, MCD, Shahdara, Delhi. Annexure A to the affidavit in Column 7 indicates action taken. From a bare perusal of the same, it appears that the action has been taken, therefore, no further orders are required to be passed."3
3. Aggrieved, the petitioner approached the Hon'ble Supreme Court by way of SLP No.15634/2005 which was decided on 12.08.2005 directing the petitioner to approach the High Court again in case of non-compliance of its order dated 16.03.2005. As a consequence the petitioner Harjeet Dua filed CM no. 624/2006 in CWP no.877/2001 seeking strict action against the officers responsible for submitting the false status report before the Court on 14.03.2005. The aforesaid CM was listed on 25.04.2006 and the High Court ordered for CBI enquiry on the following two issues:-
a) To examine the roles of erring MCD officials and other including Shri N.K. Sharma, the then Deputy Commissioner in furnishing misleading/false information to the Hon'ble Court;
b) To examine as to how the suspect officials remained in a particular area for long period of time and what kind of patronage they had and from whom.
It is stated by the applicant that the CBI came to the conclusion that no misleading or false information had been furnished by the applicant, while in para no.9 of the report, the CBI held four officers, namely, Naresh Gupta, S.P. Gautam, R.K. Gupta, Executive Engineers and Umesh Sachdeva, Superintending Engineer responsible for the same. The Hon'ble High Court, vide order dated 01.08.2007, on the basis of the CBI report directed the respondents to initiate action against the above mentioned four officers under Section 340 of Cr.PC, relevant para whereof is reproduced hereunder for the sake of clarity:- 4
"4. There is also an allegation against four officers, that they had given misleading statements in this Court in respect of 31 properties. We issue notice to the said four officers, namely, Mr. Naresh Gupta, Mr. S.P. Gautam, Mr. R.K. Gupta, Executive Engineers and Mr. Umesh Sachdeva, Superintending Engineer to show cause why appropriate action shall not be taken against them under the provisions of Section 340 Cr.PC and for Contempt of Court."
4. It is the case of the applicant that his name was also included in the list sent to the CVC which, without application of mind, had issued advice to institute proceedings for major penalty against all the four officers including the applicant. The MCD (respondent no.5 herein) arrived at the conclusion after having examined the relevant documents that the applicant had complied with the orders dated 07.01.2005 of the Hon'ble High Court and the status report dated 14.03.2005 submitted by him is neither misleading nor false nor incorrect. The MCD (respondent no.5), therefore, recommended that the written statement submitted by the applicant was satisfactory and no case was being made out against him and one Umesh Sachdeva, Superintending Engineer, who had conducted the investigation, and against whom the case had been closed by the MCD. This report had been forwarded to the GNCT of Delhi which concurred with the same. The applicant submits that the respondent no.1 in para 10 of the Note dated 05.08.2011 noted that it may not be appropriate to initiate disciplinary proceedings against the applicant, which 5 was received by him under Right to Information Act. The relevant para is reproduced hereunder for the sake of clarity:-
"10. In view of the foregoing, it may not be appropriate to initiate disciplinary proceedings against Shri N.K. Sharma. It is, therefore, suggested to take a tentative decision to close the case against Shri N.K. Sharma. Thereafter, the file will be referred to CVC for re- consideration of their advice dated 08.10.2007 (page 30/Cors.) which was rendered by the CVC without having the view of the Disciplinary Authority in respect of Shri N.K. Sharma."
However, respondent no.2 advised the respondent no.1 to issue a chargesheet against the applicant which was finally served upon him on 22.01.2013. For the sake of clarity, the statement of articles of charge framed against him is being reproduced as under:-
"Shri N.K. Sharma, IAS while functioning as Deputy Commissioner Shahdara (South) Zone, MCD from 08.12.2004 to 31.08.2005, committed gross misconduct in as much as he without inspecting all the properties of demolition of unauthorized constructions, filed an incorrect and incomplete report before the Hon'ble High Court of Delhi in 827/2001 on 14.03.2005, as the said Shri N.K. Sharma, filed the report in respect of 22 properties while showing 31 properties as old and occupied.
Shri N.K. Sharma, IAS by aforesaid act has failed to maintain professional integrity, devotion to duty and exhibited conduct unbecoming of a Govt. servant thereby contravened the provisions of the Rule 3(i) of All India Services (Conduct) Rules, 1968."
It is further the case of the applicant that the chargesheet itself is incorrect as he had not shown 31 properties as old and occupied and repeatedly demanded the list of such properties. However, the respondent no.1, without duly considering these issues, appointed one G.C. Rai as the 6 enquiry officer and Yogesh Garg as Presenting Officer, vide order dated 22.07.2013. The enquiry officer was finally intimated by the disciplinary authority vide communication dated 22.04.2014 in respect of affidavit dated 14.02.20105 filed by the applicant that the applicant had not shown 31 properties as old and occupied. The relevant portion of communication dated 22.04.2014 is reproduced as under:-
"8. From the above, it is clear that the CO had submitted its report in r/o 22 properties only and the CBI had held him responsible of not investigating the 31 properties. The 31 properties were not shown as old and occupied by the CO. Instead these were shown by MCD official earlier in its report, the CBI has also indicated four engineers for furnishing misleading information in r/o 31 old and occupied properties. Thus, there is some inadvertent typographical error in the Annexure-1 (Statement of Article of Charge) of the chargesheet. However, a thorough reading of the Annexure-1 along with Annexure-II (Statement of imputation of misconduct or misbehaviour) can make the position clear. If the memorandum of the chargesheet is read in toto with its annexures, the chargesheet against the CO becomes clear."
5. The enquiry officer thereafter also directed the Presenting Officer to furnish the names and addresses of witnesses listed at serial no. 4 & 5 of the Annexure-IV of the chargesheet, vide letter dated 02.04.2014. The applicant submits that the respondent no.1 in its communication dated 22.04.2014 has clearly recorded that a copy of the document wherein the applicant is alleged to have shown 31 properties as old and occupied, as mentioned in the chargesheet, is due to some inadvertent typographical error. 7 For the sake of clarity, the relevant part of the communication is reproduced as under:-
"2. As regard the copy of the document wherein the CO has shown 31 properties as old and occupied is concerned it appears that there is some inadvertent typographical error has occurred in the chargesheet.
3. As you are aware that the Hon'ble High Court of Delhi had directed MCD to file reports regarding action taken against unauthorized construction and the steps taken to stop them. Accordingly, action taken reports in the form of affidavits were filed by the concerned MCD officials from time to time categorizing 56 properties in three categories - (i) old and occupied buildings (31 properties) (ii) Unauthorized construction (22 properties) and (iii) Regularized construction (3 properties).
8. From the above, it is clear that the CO had submitted its report in r/o 22 properties only and the CBI had held him responsible of not investigating the 31 properties. The 31 properties were not shown as old and occupied by the CO. Instead these were shown by MCD official earlier in its report, the CBI has also indicated four engineers for furnishing misleading information in r/o 31 old and occupied properties. Thus, there is some inadvertent typographical error in the Annexure-1 (Statement of Article of Charge) of the chargesheet. However, a thorough reading of the Annexure-1 along with Annexure-II (Statement of imputation of misconduct or misbehaviour) can make the position clear. If the memorandum of the chargesheet is read in toto with its annexures, the chargesheet against the CO becomes clear."
6. The basic argument of the applicant is that in view of this categorical admission of the respondents, the main issue that applicant had filed status report in respect of 22 properties before the Hon'ble High Court on 14.03.2005 while showing 31 properties as old and occupied, falls flat and has no basis to stand upon. The respondents have further not provided the names and addresses of all the witnesses, as mentioned earlier, which fact stands well admitted by the respondent no.1. It has been further 8 submitted that the case of the applicant is also supported by the respondent no.5 in its counter affidavit.
7. The respondent no.1 & 5 filed two separate counter affidavits. In the counter affidavit filed on 03.09.2014, the respondent no.1 has primarily relied upon the report of the CBI that additions/alterations had taken place in respect of all the 31 properties which were claimed to be as old and occupied and some of which were booked for unauthorized construction on 01.03.2000 and 07.06.2002. The respondent no.1 in the counter affidavit also referred to a review application filed by the applicant before the High Court of Delhi wherein it had been ordered on 15.05.2006 that any observation made by them in the earlier order dated 24.05.2006 in relation to the applicant would not influence the enquiry. The applicant had also been repatriated and inducted into the Indian Administrative Service. The respondent has further recorded in para 12 of the counter affidavit as under:-
"12. On receiving the above recommendation of CVC, the disciplinary authority (Respondent Ministry) disagreed with the recommendations of the CVC on the point that the applicant (Shri Sharma) was required to inspect only "22 properties" while CBI has recorded in its findings that he gave information in respect of "only 22 properties" and inspection of "31 other properties"
was not carried out. CBI has not mentioned that the report submitted by the applicant (Shri N.K. Sharma) is misleading or false and forwarded the matter to DoP&T for their advice as the disciplinary authority disagreed with the recommendation of the CVC." 9
8. The counter affidavit further records that the advice of the CVC had been referred to the MCD seeking more documents in order to issue chargesheet against the applicant. The latter examined the matter along with the version of the petitioner and concluded that no case was made out against the applicant. The matter was further referred to the CVC for re-consideration which reiterated its earlier stand. The disciplinary authority had disagreed with the advice of the CVC and sent the matter to the DoP&T, which endorsed the view of the CVC.
9. The respondent no.5 while filing the counter affidavit washed his hands off the matter stating that it has no role to play in the instant case.
10. The applicant has also filed rejoinders to the replies of both the respondent nos.1 & 5 reiterating his stand that no enquiry could take place in absence of the primary document containing 31 properties as old and occupied as the same admittedly does not exist. The applicant, however, added further that the disciplinary authority was not bound by the advice of the CVC, rather it is free to take its own decision.
11. The Tribunal vide order dated 02.07.2015 while taking note of the fact that no list of 31 properties had been provided to the applicant, directed the respondents to 10 produce the record of the department in the court. On 10.08.2015, the learned counsel for the respondent no.1 fairly submitted that the enquiry against the applicant would be completed within a period of three months. However, learned counsel for the applicant produced a copy of the communication dated 26.02.2015 depicting obvious errors in the chargesheet. The learned counsel for the respondent no.1 was directed to take instructions as to within what time they would complete the proceedings against the applicant. On 28.10.2015, the Tribunal recorded as under:-
"At the outset, Shri Rajeev Kumar, learned counsel appearing on behalf of the respondent nos. 1 to 3, submits that pursuant to the order of the inquiry officer dated 22.07.2015, the matter is under examination by the disciplinary authority in respect of the opinion given by the inquiry officer regarding infirmity in the charge-memo. He, therefore, submits that the decision would be taken by the disciplinary authority within two weeks from today positively. However, Shri Rajeev Sharma, learned counsel for the applicant, opposed the prayer and submitted that in view of the observations in the aforesaid order of the inquiry officer, the charge-memo itself became laconic and deserves to be set aside. He, therefore, submits that the matter may be disposed of today.
Be that as it may, since the counsel for the respondents submits that the matter is still under examination before the disciplinary authority, we feel it appropriate to defer the matter to some other date...."
12. During the course of argument, the learned counsel for the respondent no.1 Shri Rajeev Kumar fairly acknowledged the error in the chargesheet and submitted that the department was considering issuance of a revised chargesheet to the applicant. This virtually settles the matter.
11
13. The above discussion leaves not an iota of doubt that the chargesheet dated 22.01.2013 served upon the applicant is based upon incorrect facts. This has been admitted by the learned counsel for the respondents during the course of final hearing and also in the communication dated 26.02.2015 from the enquiry officer to the disciplinary authority. For the sake of clarity, we reproduce the relevant para of the communication dated 26.02.2015 as under:-
"2. In reference to above mentioned MHA letter forwarded by PO to the then CDI Shri G.C. Rai vide letter dated 25.04.2014, the then CDI, Shri G.C. Rai vide letter dated 22/05/2014 (Copy endorsed for ready reference) addressed to your good self had observed that since MHA is itself admitting advertent typographical error in the Annex-I of the Charge sheet, he was of the view that the noticed advertent typographical errors of annex-I is required to be rectified at this stage itself instead of proceeding with Charge sheet containing typographical error in Annex-I of the Charge sheet. Continuation of Inquiry proceedings with a charge sheet having inadvertent typographical error, if any in Annex-I (Charge sheet) may render whole exercise infructuous later on, on technical ground by the Hon'ble Courts. Accordingly, the then CDI had requested the DA to look into the matter and rectify the said inadvertent typographical error by issuing a corrigendum of same.
3. The decision of the DA is still awaited. It is therefore requested that the present status/decision in the matter may be intimated to the undersigned at the earliest, so that further action in the inquiry proceedings may be taken."
14. In view of the above, we are of the considered opinion that the chargesheet dated 22.01.2013 is itself based upon erroneous consideration and advertent typographical error has been well admitted. It is also admitted that the Hon'ble High Court of Delhi has not held the applicant responsible or 12 a party to the wrong reporting, whereas he had reported only in respect of 22 properties which he inspected along with the SE Umesh Sachdeva, against whom disciplinary proceedings were initiated, which have since been dropped. We also take into consideration that because of these proceedings lingering for a period of almost 8-9 years, the applicant has not been able to get his due promotions whereas his juniors have been promoted over his head. He, therefore, suffers ignominy of serving under his juniors. He has been put to this ordeal on the basis of ill-conceived allegations and unsubstantiated chargesheet.
15. In totality of facts and circumstances of the case and in view of our above discussion, we have the least hesitation in striking down the impugned chargesheet dated 22.01.2013. Resultantly, the instant Original Application stands allowed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /AhujA/